Andres Santana v. Court of Appeal of California, Second Appellate District
ERISA DueProcess HabeasCorpus
Whether a California Penal Code §1237(b) appeal is a state-created liberty interest under Board of Regents, and if so, whether the right to file pro se supplemental contentions/brief under People v. Wende is a 'parent right' that begets other essential procedural rights
QUESTION(S) PRESENTED 1. ts a California Penal Code $1237 (b) appeal from “any order made after judgment, affecting the substantial rights of the party," a state created liberty interest under Board of Regents of State Colleges v. Roth (19725 408 U.S. 564 ("Board of Regents”), and if it is, 18 it a “parent right" under D.A."s Office v. Osborne (2009) 557 U.S. 52 ("Osborne"), that begets yet other rights to procedures essential to the realization of the parent right, specifically, the right under People v. Wende (1979) 25 Cal.3d 436 ("Wende"), of an appellant to file pro se supplemental contentions/brief when his appointed appellate counsel submits a brief which raises no specific issues, but instead only summarizes the proceedings in the trial court, i.e., a Wende brief? 2. $f appellant's filing of pro se supplemental contentions/brief, under Wende, is a begotten right essential to the realization of a Penal Code §1237 (b) parent right of appeal, was the California Court of Appeals refusal to file appellant's Wende pro se supplemental contentions/brief, because its records showed appellate counsel remained appointed to the appeal--althogh California's framework, in Wende appeals, will always show appointed appellate counsel remains appointed to the Wende appeal because Wende's procedure calls for appellate counsel to not be relieved but to remain to brief any issues the Court of Appeals deems with the traditions and conscience of our people to challenge appealed from judgments and orders and with California's recognized principles in fundamental fairness in operation when appointed appellate counsel files a Wende brief? 3. Did the California Court of Appeals violate Petitioner's right to Equal Protection of the Laws when it refused to file his pro se Wende brief because counsel remained appointed to his case, thereby treating him differently from all other Wende appellants whose pro se Wende briefs are not refused filing despite counsel remaining appointed to their case? 4. When a state retroactively nullifies its felony murder statute and retroactively redefines it, thus preventing the initial presentation on direct appeal that a person does not meet its new definition of .felony murder, and creates a statutory regime which explicitly calls for the claim to be presented in a framework which, replaces reinstating the first appeal as of right, does the Smith v. Robbins (20005 528 U.S. 259 ("Robbins"), right to an “adequate and effective" appeal apply to the replacement the state has created to the reinstatement of the first appeal as of right? 2 QUESTION(S) PRESENTED _ §. Did the California Court of Appeals de facto suspend Petitioner's Privilege to the writ of habeas corpus, in violation of Article I, Section 9, Clause 2, of the U.S. Constitution, when it refused to file his pro se Wende brief, given that such a refusal disallows 28 U.S.C. §2254 (b)TI)(CA) exhaustion of state remedies which, in turn, precludes Petitioner from pursuing the writ in federal court? 6. Is the rule of In re Estrada (1965) 63 Cal.2d 740 ("Estrada"), which makes retroactive to cases not yet final on appeal Tegislative ameliorative changes to statutes that benefit defendants, a state | created liberty interest under Board of Regents, and if it is, is the California Court of Appeals refusal to file and consider Petitioner's pro se Wende brief, whereby he would have employed Estrada's retroactive rule to benefit from the California : Legislature's passage of S.B. 775 and A.B. 333, which occurred while his case was pending in the Court of. Appeals, inconsistent with the traditions and conscience of our people for defendants to benefit from legislative ameliorative changes to statutes when their cases are not yet final on appeal, and with California's recognized principles in fundamental fairness in operation of application of the Estrada rule? 7. Did the california Court of Appeals violate Petitioner's right to Equal Protection of the Laws when it treat